EXECUTION OF WILLS. (Hansard, 27 June 1837)

§ Sir R. Inglis
rose to draw the attention of the House to the extraordinary changes in the law which this Bill proposed. It would materially injure the small proprietors of property, by whom a large proportion of the wills were made. He found, by returns made to that House, that in the year 1829 five-sevenths of the probates granted in London were for property under the value of 3,000l.; and that nearly one half of this proportion was for property under the value of 450l. This measure, therefore, could not materially injure the millionaires, but would seriously affect the many. It would lead to considerable expense, great vexation, and would almost prevent the execution of wills. The object of the Legislature ought not to be to regulate the descent of property, but to encourage its acquisition. The more unfettered it left the disposition, the more would it carry out the proper designs of a paternal government. The present Bill made alterations in the law as it now stood in three important particulars:—1st, it regulated personal property by the same rule as real property; in the next place it prevented minors from making provision for their offspring, though it was not intended to prevent them from marrying; and, lastly, it annihilated holograph wills, and rendered two witnesses necessary in every case; thus making professional advice indispensable in their preparation, and leading to publicity. He thought it would be better to say at once that a man had no right to dispose of his property, rather than to put upon its disposition such restrictions as would in the majority of cases nullify the will; and he thought, also, that there was no evidence of the intentions of the parties so good as when they put such intentions upon paper in their own handwriting. He objected to the bill so much, he felt so little satisfaction with it, and had heard so little in its favour, that he would much rather vote against the bill altogether than allow it to go on, especially as he thought that it would lead to more fraud, litigation, and intestacy than by leaving the law as it now stood; but, though he should not move that the Committee should be appointed for this day six months, yet he would reserve to himself the right of moving clauses to postpone the operation of the bill till the first 1665 of Jan. 1839, and to declare that all wills declared to be published before that time, should be considered as duly published for all future time, but that all codicils executed subsequently should be placed under the same law as existed at the time of the execution of the will.

§ The Attorney-General
entirely despaired of convincing the hon. Baronet of the propriety of this measure if he were not already convinced by all that had Deen written in its favour. It had received the approbation of the Ecclesiastical Commissioners, had been approved of by the real property Commissioners, had twice passed that House, had been twice carefully considered by a Select Committee, and in the House of Lords had obtained the support of the Lord Chancellor and Lords Brougham, Lyndhurst and Abinger. The heads of the courts of common law, of equity, and of the ecclesiastical courts also concurred in its propriety, whilst the Archbishop of Canterbury, the Bishop of London, and other right rev. Prelates united in strenuously recommending this alteration of the law. Sir N. Tindal and Lord Tenterden also approved of it; and if the hon. Baronet still thought, in spite of authorities such as these, that the Bill was wrong, he was right, manfully to come forward and state his objections. He had, however, omitted one material evil which this Bill remedied: there were parts of the country where no will was sufficient directly to pass real estate, and he well recollected when he had the honour to be one of the property law Commissioners, that this defect was pointed out to him, in an able paper he received from the hon. Baronet the Member for Cumberland. Now this Bill would remedy this, and would render uniform the method of making wills relating to real and personal estate. Nothing could be more absurd than the present law upon this subject; for whilst a single perch of freehold land could not be disposed of by will, unless such will were executed in the presence of three witnesses, yet no witnesses were required to a will relating to a copyhold estate of the greatest value, and it might pass by a mere memorandum put into one's pocket book, without signature or attestation. Again, with respect to funded property, two witnesses were generally required to a will; but none if it related to other kinds of personality. The present Bill would put an end to ligitation, and 1666 would thus diminish the profits of the legal profession; and though professional men might be oftener employed than heretofore in the preparation of wills, yet he thought it far better that a small fee should be expended for such a purpose, than that thousands of pounds should be expended in, and the family be impoverished by, litigation, which was too frequently the case now. The statute of frauds required witnesses to the execution of wills relating to real property, and he thought that the same solemnities should be required and the same care taken against fraud for each, and this was all that the present bill provided. At present there was this anomaly, that the same will might be bad as regarded real property, whilst it was good as regarded the personality included in it. The present Bill only required two witnesses; it did not render professional assistance absolutely necessary, and it led to no publicity. He hoped, therefore, that after the mature deliberation which had been given to it, and the high sanction which it had received, that it would be allowed to pass that House. The hon. and learned Gentleman concluded with saying, that he should oppose the amendment of the hon. Baronet, both as regarded the time at which the Bill should come into operation and as regarded the general principle.

§ Mr. Tooke
did not intend to oppose the Bill going into Committee, as there was much in it that he approved of, but to many of its clauses he could not give his consent without great alteration.

Dr. Lushington
had no doubt that the passing of this Bill would render the wills of the humbler classes of society more valid than they were under the present state of the law, for it was notorious that they were in the habit of having attestating clauses without the signature of witnesses. He had had at least fifty cases of this kind come before him during the present year. He denied that this Bill would increase the expense of making wills, and at any rate it would greatly diminish litigation. The only objection that he had heard against this Bill was the difficulty of procuring two witnesses to a will—an evil which he did not believe could exist.

§ Sir R. Inglis
proposed the addition of a proviso to the effect that any will of personal estate written wholly by the testator, and dated either in the introduction or at the close, or in any part thereof, and signed by him at the foot thereof, shall be valid to all intents and purposes, without need of any acknowledgment before witnesses, or any attestation thereof.

THE FIRST DIVISION.
List of the AYES.
Adam, Sir C.	Lefevre, C. S.
Aglionby, H. A.	Lefroy, right hon. T.
Alsager, Captain	Lennard, T. B.
Baring, F. T.	Lennox, Lord G.
Beauclerk, Major	Lennox, Lord A.
Benett, J.	Lewis, D.
Bewes, T.	Lushington, Dr.
Biddulph, R.	Lynch, A. H.
Blake, M. J.	Macleod, It.
Boldero, H. G.	Murray, right hon. J. A.
Brocklehurst, J.
Brotherton, J.	Palmerston, Viscount
Butler, E.	Parker, M.
Buller, Sir J. Y.	Parker, J.
Callaghan, D.	Parnell, right hon. Sir H.
Campbell, Sir J.
Chalmers, P.	Pease, J.
Collier, J.	Pendarves, E. W. W.
Crawford, W. S.	Pigot, R.
Dalmeny, Lord	Potter, R.
Dennistoun, J.	Rice, right hon. T. S.
Ebrington, Viscount	Roche, W.
Elley, Sir J.	Rolfe, Sir R. M.
Elphinstone, H.	Russell, Lord J.
Evans, G.	Seale, Colonel
Farrand, R.	Seymour, Lord
Fergus, J.	Shaw, right hon. F.
French, F.	Sinclair, Sir G.
Gaskell, D.	Smith, R. V.
Gordon, R.	Tancred, H. W.
Goulburn, Sergeant	Thomson, right hon. C. P.
Graham, right hon. Sir J.
	Thornley, T.
Grey, Sir G.	Tooke, W.
Hawes, B.	Townley, R. G.
Hay, Sir A. L.	Vivian, J. E.
Howard, R.	Ward, H. G.
Howick, Viscount	Williams, W.
Hume, J.	Woulfe, Sergeant
Jervis, J.	Wyse, T.
Knatchbull, right hon. Sir E.	Young, G. F.
	TELLERS.
Knight, H. G.	Steuart, R,
Labouchere, rt. hon. H.	Wood, C.

List of the NOES.
	TELLERS.
Halse, J.	Inglis, Sir R. H.
Hinde, J. H.	Plumptre, J. P.

THE SECOND DIVISION.
List of the AYES.
Beauclerk, Major	Seale, Colonel
Collier, J.	Tooke, W.
Crawford, W. S.	Townley, R. G.
Goulburn, Sergeant	Tulk, C. A.
Hinde, J. H.	Vivian, J. E.
Hume, J.	Wilson, H.
Knatchbull, right hon. Sir E.
	TELLERS.
Law, hon. C. E.	Plumptre, J. P.
North, F.	Inglis, Sir R. H.

List of the NOES.
Adam, Sir C.	Lennox, Lord A.
Aglionby, H. A.	Lewis, D.
Alsager, Captain	Lushington, Dr.
Benett, J.	Lynch, A. H.
Bewes, T.	Macleod, R.
Blake, M. J.	Morpeth, Viscount
Brocklehurst, J.	Murray, right hon. J. A.
Brotherton, J.
Buller, Sir J. Y.	O'Ferrall, R. M.
Burrell, Sir C.	Palmer, G.
Callaghan, D.	Palmerston, Viscount
Campbell, Sir J.	Parker, M.
Chalmers, P.	Parker, J.
Corbett, T. G.	Parnell, right hon. Sir H.
Dalmeny, Lord
Ebrington, Viscount	Pease, J.
Elley, Sir J.	Pendarves, E. W. W.
Elphinstone, H.	Potter, R.
Euston, Earl of	Richards, R.
Forster, C. S.	Russell, Lord, J.
Gaskell, D.	Seymour, Lord
Gordon, R.	Shaw, right hon. F.
Graham, right hon. Sir J.	Smith, V.
	Steuart, R.
Grey, Sir G.	Tancred, H. W.
Hindley, C.	Thomson, right hon. C. P.
Hobhouse, right hon. Sir J.
	Thornley, T.
Hogg, J. W.	Verner, Colonel
Howard, R.	Williams, W.
Howard, P. H.	Wood, C.
Howick, Viscount	Woulfe, Sergeant
Jervis, J.	Young, G. F.
Knight, H. G.
Lefevre, C. S.	TELLERS.
Lefroy, right hon. T.	Labouchere, rt. hon. H.
Lennox, Lord G.	The Solicitor-General